Shober v. Wheeler

Full title: F. E. SHOBER ET AL. v. W.H. WHEELER

Court: Supreme Court of North Carolina

Date published: Sep 1, 1896

26 S.E. 26 (N.C. 1896)

119 N.C. 471

Opinion

(September Term, 1896.)

Practice — Case on Appeal, Service of — Parties With Different Interests — Certiorari.

1. Where the interests of several parties on the same side are identical, a case on appeal may be served on any one of them, but when their interests are different and they are represented by different counsel, a case on appeal must be served on each set; and only as to such as are so served will a certiorari be granted when the judge fails to settle the case on appeal.

2. In such case the application for the certiorari should be based upon the docketing of the rest of the record; otherwise, upon objection on that ground, the certiorari will be denied.

MOTION of appellant for certiorari.

Watson Buxton for plaintiff.

Jones Patterson for defendant (appellant).

(472)

CLARK, J.

When there are several parties on the same side, with identical interests and employing the same counsel, the service by the appellee of his "case on appeal" on either one would be sufficient, but here the plaintiffs (appellees) were divided in their interests and employed different counsel. The original plaintiffs were not served with the case on appeal at all. Those served with the case on appeal had been brought into the action. Except as to the parties who were represented in whole or in part by the counsel on whom the case on appeal was served, the appellants are not entitled to a certiorari. As to the parties upon whose counsel the "case on appeal" was served in due time, the judge not having settled the case, the certiorari will issue. Such application should always be based upon docketing the rest of the record, and if that is not done upon motion on that ground the certiorari will be denied. Pittman v. Kimberly, 92 N.C. 562; Wiley v. Lineberry, 88 N.C. 68; Suiter v. Brittle, 90 N.C. 19; State v. Freeman, 114 N.C. 872. Objection on that ground was not made by the parties on whom the case was served, and as to them the certiorari will issue.

MOTION ALLOWED.

Cited: Brown v. House, post, 622; Guano Co. v. Hicks, 120 N.C. 30; Burrell v. Hughes, ib., 278; Parker v. R. R., 121 N.C. 504; Walsh v. Burleson, 154 N.C. 175.

(473)